Legal and jurisprudential theory of inherent rights for ecosystems and species, similar to fundamental human rights, subverting the human-centered perspective of environmental law that has gained awareness, recognition, and actual legal personhood status for natural resources
Context
The era of human geological influence, as evidenced by the impacts of climate change, biodiversity loss, land use changes, fresh-water use, and alterations to the nitrogen cycle, is a result of the imperialist practices and their accumulation processes, leading to the disproportionate impact on the planet that we see today. This unequal distribution of impact is further compounded by the fact that it is rooted in a culture of expanding rights that has been intertwined with colonialism and the subjugation of Indigenous peoples. The concept of human rights, which has its roots in European philosophy and political practice since at least the 18th century, has undergone several transformative shifts towards a world viewed in terms of rights and obligations. This dominant view, exemplified by the French and American revolutions, posits human rights as applicable based solely on membership in the human species, without regard for social class, gender, ethnicity, etc. However, in practice, human rights have never been equally distributed and continue to be a highly unequal tool. At the same time, the rise of rights as a critical category has been accompanied by the expansion of capitalism and the perpetual growth of political liberalism, which has become split between two poles: individual rights and free movement of capital, with the latter being seen as necessary for the former.
Practice
The “rights of nature” recognise that ecosystems, such as forests, rivers, oceans, and wetlands, have the right to exist and flourish, independent of their value to human beings. According to this concept, an ecosystem is entitled to legal personhood status and as such, has the right to defend itself in a court of law against harms, including environmental degradation caused by a specific development project or even by climate change. This means that legal representation can be sought on behalf of an ecosystem in the same way that individuals or organisations may seek legal representation in other cases. The “rights of nature” should be viewed from a political perspective, not just a legal one. It is crucial to consider the power dynamics involved when understanding what the rights of nature are meant to accomplish. Legal norms, no matter how well-written, will only be effective if they are implemented and this requires political power. The question of who has the authority to represent nature with rights is key to understanding the impact they may have. Local legal contexts are important, but what gives the rights of nature real significance is the political process leading up to their implementation, and whether they are upheld or not.
There are many successful cases of the rights of nature being implemented despite potential challenges and limitations that can arise due their legal ambiguity, limited jurisdiction, and lack of political will. In Ecuador the constitution was amended in 2008 to recognise “rights of nature”, the Te Urewera Forest in New Zealand became the world’s first legal natural person in 2014, following the Atrato river in Colombia (2016), the Whanganui River in New Zealand (2017), and many others.
It is important to mention that the “rights of nature” are not primarily about protecting nature or addressing a universal solution for environmental harm but about creating new relationships that can help address environmental concerns in a different way. They are also about recognising the significant impact of the built environment on natural ecosystems; from the materials used in construction to the energy consumption of buildings. “Rights of nature” are gaining prominence as a way to shift the focus from economic growth and resource extraction to environmental protection and sustainability. They were particularly significant at the 15th Conference of Parties (COP15) which highlighted the importance of incorporating Indigenous perspectives and recognised the need for creating new relations between humans and nature. Ultimately, “rights of nature” provide a legal framework for environmental activism and litigation, allowing individuals and organisations to challenge the actions of governments and corporations that harm the environment.